DAs urge expansion of DNA databank

CAPITAL REGION — By the time he was finally charged, one-time Schenectady resident Raymon McGill had committed two murders and one rape, the murders taking place four years apart.

But, advocates of a new measure say, at least one of the killings — and possibly both — could have been prevented.

Had McGill been forced to submit a DNA sample when arrested for prior, minor crimes, he could have been linked to the murders and rape and put away far earlier, they say.

Instead, it wasn’t until March 2005 — five years after the initial killing — that he was identified through DNA in another felony case, charged with the killings and rape. He then admitted involvement.

The District Attorneys Association of the State of New York last week asked Gov. David A. Paterson to support an expanded DNA databank that would require suspects to give samples upon arrest. Currently, samples are only required after a conviction on felonies and many misdemeanors.

Advocates of the measure liken DNA to fingerprints, saying the change will save lives and heartache, as well as force compliance from offenders, many of whom now skirt the current law.

The New York State Defenders Association and others, however, oppose the change, saying it would violate the presumption of innocence. It’s a tool to investigate other crimes, not confirm the identity of the suspect, they say.

“I don’t think there is any principled reason to treat a DNA swab as any different than we treat fingerprints,” said Schenectady County District Attorney Robert Carney, whose office prosecuted McGill in the 2005 case that finally provided the DNA sample that linked him to the prior crimes.

“The timeline shows if he would have been prosecuted for the first crime,” Carney said, “the other two might never have occurred.”

Already, 11 states have begun taking DNA samples at the time of arrest from murder suspects and sex crime suspects, according to the site DNAResource.com.

The federal government announced last month that it too, would begin taking samples at the time of arrest in its cases. That could happen as early as later this year.

New York currently takes samples upon conviction of any felony and numerous misdemeanors. Only two other states, New Jersey and Utah, go that far after convictions. No state has a blanket requirement for samples after convictions on all finger-printable crimes.

2 bills in Legislature

There are at least two bills in the state Legislature to expand New York’s DNA database. A Senate bill, co-sponsored by Niskayuna state Sen. Hugh T. Farley, would expand it to all convictions for finger-printable offenses.

Another, in the Assembly, calls for DNA to be taken from anyone arrested for a finger-printable offense. That bill is co-sponsored by Republican Assemblywoman Teresa Sayward, whose district includes parts of Saratoga County.

Both bills, however, remain in committee.

A spokesperson for Paterson said he supports the bill expanding the database for convictions. But the governor wants an incremental approach to expansion.

The New York DNA databank was established in 1996 and became operational in August 1999 — the month after McGill’s first misdemeanor conviction.

It initially applied only to 20 felony offenses, but the list has since been expanded three times to include all felony convictions and many misdemeanors.

McGill, advocates point out, was convicted of petty larceny in 1999, the year before the rape and first murder. No DNA sample was required at that time. Had he been convicted of that offense today, however, he would be required to submit a sample.

He was again convicted in November 2003, this time for misdemeanor drug possession. That conviction happened nearly three months before he killed again. That charge, however, does not carry a requirement for a DNA sample, even today.

Both killings and the rape happened in Albany.

processing delays

The last databank expansion caused processing delays because it was retroactive, but the state labs have since caught up, officials said. Further expansion requiring samples from all those arrested would require more staff at labs to process the samples, a state Department of Criminal Justice Services spokesman said.

The database included more than 268,000 profiles as of last month, records show. There have been nearly 5,800 “hits” since the system went into effect. Hits are possible matches, which are then sent to local law enforcement for confirmation and investigation.

Already this year, arrests were made in two Schenectady rape cases based largely on matches gained through the current database.

Opposing the state District Attorneys Association is the state Defenders Association.

Alfred O’Connor, an attorney with the group, said last week they believe the current law is appropriate. Expanding it to the time of arrest would be a violation of the presumption of innocence.

Comparing DNA to fingerprints is not valid, O’Connor said. Fingerprints are used to confirm a person’s identity and their criminal history. DNA would be used to investigate other crimes.

“It’s not surprising that the district attorneys would seek this information,” O’Connor said. “They aren’t charged with protecting the presumption of innocence.”

Carney, however, doesn’t buy that argument. Fingerprints, he said, can be used in a similar manner, checking them against prints found at other crime scenes.

The DNA profiles would also be treated just like fingerprints, Carney said. If someone is cleared of a crime, the fingerprints taken are sealed. The DNA profiles would be handled the same way.

rights group opposed

The New York Civil Liberties Union is also opposed to any presentencing collection of DNA. The group alleges problems with retention of samples and use of matches.

“It’s a very, very attractive law enforcement tool,” said Melanie Trimble, executive director of the group’s Capital Region chapter. “But it really isn’t as reliable as people think it is.”

James A. Murphy III, Saratoga County district attorney and state association president, said there would also be other benefits. Samples are now taken post conviction by several agencies, depending on how the conviction is decided. Under the proposal, local police would handle collection, just like fingerprints and other information.

The current system has also resulted in hundreds of people statewide who have skirted it and failed to give a sample.

In cases where there is no further jail time, offenders are simply ordered to go to law enforcement and submit a sample, Murphy said. Many don’t bother.

Albany County District Attorney P. David Soares last week began a campaign to get those to comply.

In Albany, Schenectady and Saratoga counties, nearly 300 people have fallen through the cracks and so far failed to give a sample, Murphy said. Those represent about 15 percent of all eligible cases.

The arrest proposal is his association’s ultimate goal, Murphy said. They would also support the lesser bill calling for submissions in all criminal convictions.

But, he said, taking it at arrest just makes sense.

“It’s not like we’re reinventing the wheel,” Murphy said. “We already take a lot of information at the arrest. This would just be another piece.”